There are indications, however, that the Court may be prepared to go further than it has in the past in condemning discrimination as a denial of due process of law. Relying upon public policy and its supervisory authority over federal courts, it has reached results similar to those arrived at under the equal protection clause of the Fourteenth Amendment, in refusing to enforce restrictive covenants in the District of Columbia,[151] and in reversing a judgment of a Federal District Court because of the exclusion of day laborers from the jury panel;[152] and in Steele v. Louisville & N.R. Co.[153] the Railway Labor Act was construed to require a collective bargaining representative to act for the benefit of all members of the craft without discrimination on account of race. Chief Justice Stone indicated that any other construction would raise grave constitutional doubts,[154] while in a concurring opinion, Justice Murphy asserted unequivocally that the act would be inconsistent with the Fifth Amendment if the bargaining agent, acting under color of federal authority, were permitted to discriminate against any of the persons he was authorized to represent.[155]
DEPRIVATION OF LIBERTY
In consequence of the explicit assurances of individual liberty contained in other articles of the Bill of Rights, the clause in the Fifth Amendment forbidding the deprivation of "liberty" without due process of law has been invoked chiefly in resistance to measures alleged to abridge liberty of contract. The two leading cases which held legislation unconstitutional on this ground have, however, both been overturned in recent years. Adair v. United States,[156] which invalidated an act of Congress prohibiting any interstate carrier from threatening an employee with loss of employment if he joined a labor union, was overruled in substance by Phelps Dodge Corp. v. National Labor Relations Board.[157] Adkins v. Children's Hospital,[158] in which a minimum wage law for the District of Columbia was found to be an unwarranted abridgment of the liberty of contract, was expressly repudiated by West Coast Hotel Co. v. Parrish.[159] Numerous other statutes—antitrust laws,[160] acts limiting hours of labor,[161] prohibiting advance of wages to seamen,[162] making carriers liable for injuries suffered by employees irrespective of previous contractual arrangements,[163] requiring employers to bargain collectively with employees[164] and fixing prices of commodities[165] have been sustained against attack on this ground.
Interpreting statutes which made the guaranty of due process of law applicable to Hawaii and the Philippine Islands, the Court enjoined enforcement of an act of the Territory of Hawaii which prohibited maintenance of foreign-language schools except upon written permit and payment of a fee based upon attendance,[166] and held unconstitutional a Philippine statute which prohibited Chinese merchants from keeping any accounts in Chinese.[167]
DEPRIVATION OF PROPERTY
Retroactive Legislation Sustained
Federal regulation of future action, based upon rights previously acquired by the person regulated, is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Accordingly, rent regulations were sustained as applied to prevent execution of a judgment of eviction rendered by a State court before the enabling legislation was passed.[168] An order by an Area Rent Director reducing an unapproved rental and requiring the landlord to refund the excess previously collected, was held, with one dissenting vote, not to be the type of retroactivity which is condemned by law.[169] The retroactive effect of a new principle announced by a decision of an administrative tribunal has been likened to the effect of judicial decisions in cases of first impression. In Securities Comm'n. v. Chenery Corp.,[170] the Supreme Court sustained a decision of the Commission which refused to approve a plan of reorganization for a public utility holding company so long as the preferred stock purchased by the management was treated on a parity with other preferred stock even though the purchase of such stock, when made, did not conflict with any law or rule of the Commission. In the exercise of its comprehensive powers over revenue, finance and currency, Congress may make Treasury notes legal tender in payment of debts previously contracted[171] and may invalidate provisions in private contracts calling for payment in gold coin.[172] An award of additional compensation under the Longshoremen's and Harbor Workers' Compensation Act,[173] made pursuant to a private act of Congress passed after expiration of the period for review of the original award, directing the Commission to review the case and issue a new order, was held valid against the employer and insurer.[174] The application of a statute providing for tobacco marketing quotas, to a crop planted prior to its enactment, was held not to deprive the producers of property without due process of law since it operated, not upon production, but upon the marketing of the product after the act was passed.[175]
The validation by statute of a prior mortgage of personal property invalid because improperly recorded, did not deny due process of law to a judgment creditor seeking to levy an attachment on the mortgaged property.[176] Nor was property taken without due process of law by a statute of New Mexico territory, permitting disseisin of real property to ripen into title after ten years.[177] An order of the military governor of Porto Rico reducing the period during which the possession of real estate must continue, to permit an ex parte conversion of an entry of possessory title into record ownership was construed to apply only where there still remained a reasonable opportunity for the true owners to contest the claim. The Court said that any other construction would permit a taking of property without due process of law.[178]